диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 9

Even if thecoordinated intent of all the five Arctic Coastal States would be to regard theArctic Ocean as legally similar to the Indian Ocean, or another “non-Arctic”ocean, and to agree that there will be the international seabed area (“commonheritage of mankind”) 28 here, that would raise yet another question: namely,27For more details, see: Arkticheskii region: problemy mezhdunarodnogo sotrudnichestva [The Arctic Region:Issues of International Cooperation].

In 3 vols. / Ed by I.S. Ivanov, A.N. Vylegzhanin. М. 2013. Vol. 3. P. 11 et seq.28The term “international seabed area” (the “common heritage of mankind”) cannot be found in the 1958 GenevaConventions on the Law of the Sea, but it was introduced by the 1982 UNCLOS (Art. 1 and Part XI).40whether four of such five states (that are parties to the 1982 UNCLOS) must, underits Art. 76, delineate their shelf from the international seabed area (“commonheritage of mankind”)? Are they also obliged to make contributions to theInternational Seabed Authority to exploit non-living resources of the continentalshelf beyond 200 nautical miles – as per Art.

82 of the 1982 UNCLOS? That is,must these four Arctic coastal states initially put themselves in a worse positionthan the fifth one – the US – that has no such obligations since the US is not partyto the UNCLOS?In this context, it is important to emphasize the consensus on the followingpositions in the Anglo-American international law doctrines regarding thequalification of the legal regime of the Arctic shelf.First, all representatives of such doctrines tie the emergence of the instituteof continental shelf only to the 1945 proclamation of the U.S. President Truman.Thus, the fundamental Ocean Yearbook published in Chicago and London back in1978 states, “At about the same time (1958), the Geneva Conference on the Law ofthe Sea was drafting a convention (to take effect in 1964) on the continental shelf.The jurisprudential transformation of this geological feature derived from aproclamation by President Truman in 1945.

This proclamation declared that sincemodern technology (i.e., offshore drilling for oil) was capable of exploiting theresources of the continental shelf, since recognition over such resources wasnecessary, and since the exercise of such jurisdiction by the contiguous state wasjust and reasonable, United States regarded the continental shelf as appertaining toit and subject to its jurisdiction and control.”29At that, the authors ignore the view existing in the Russian international lawdoctrine, to the effect that the notion of “continental shelf” as a legal concept wasfirst mentioned in the well-known Russian note of 1916, which, among otherthings, affirmed Russia’s title to the “Siberian continental platform.”3029Ocean Yearbook. Pacem in Maribus.

Ed. by E.M. Borgese and N. Ginsburg. Chicago and London. 1978. P. 276(XVII + 890 PP.).30See the Russian text of Russia’s 1916 declaration декларации in Arkticheskii region: problemymezhdunarodnogo sotrudnichestva [The Arctic Region: Issues of International Cooperation]. Vol. 3. P. 140.41Contrary to that, the most frequently cited English two-volume treatiseInternational Law of the Sea once again links the institute of the continental shelfwith the US President Truman’s 1945 declaration: “The problem of the continentalshelf was already implicit in the vague reference to the continental shelf in theTruman Proclamation of 1945.”31The same reference to the 1945 Truman Proclamation in the discussion ofthe institute of the continental shelf is made in the many editions of The Law of theSea by R. Churchill and A.

Lowe: “The combination of elements in the formationof customary law can be seen, for instance, in the emergence of the continentalshelf as a legal concept. In 1945 President Truman claimed for the United Statesownership of the resources of the sea bed adjacent to the United States, and thiswas followed by similar claims made by many other States.”32Second, the Anglo-American international law doctrines more often than notfail to take account of the special status of the Arctic that had emerged long beforethe 1982 UNCLOS, as noted above. Accordingly, most western analyists presumethat the 1982 UNCLOS applies to the Arctic, including to the Arctic shelf. As tothe institution of “common heritage of mankind” in the Arctic Ocean, however,scholars are mostly silent.I have shown above that there has been no common intent of the five Arcticcoastal states to create a section of the “Area” (“common heritage of mankind”) inthe Arctic Ocean.

This is my duty now to explain the issue further. If, contrary totheir national interests, the five Arctic coastal states had nevertheless wished tocreate “the common heritage of mankind”, that would fortify the claims of nonArctic states to oil and gas, and other natural resources of the Arctic Ocean floor;that would have triggered the creation of new areas of interstate economiccompetition; it would have impaired the regional legal identity of the Arctic,historically formed by treaties between the Arctic states themselves dating as earlyas 1825. No such perception, however, is seen in the publications by Anglo31Brown E.D.

The International Law of the Sea. Vol. I. Dartmouth Publishing Company. P. 140.32Churchill R.R., Lowe A.V. The Law of the Sea. Third edition. Juris Publishing. 1999. P. 7 (xlix+494 P.).42American legal scholars. They also neglect the fact that despite the absence of thecommon intent of the “Arctic five” to delimit the Arctic shelf or, alternatively, tocreate the “the common heritage of mankind” in the Arctic, in 1997, the RussianGovernment issued a resolution mandating to begin the work to delineate Russianshelf in the Arctic from the “the common heritage of mankind”.33 This resolution,whose implementation results in Russia’s losing at least 300,000 sq.m. in actingthrough the Commission on the limits of the Continental shelf (CLCS), has beenqualified (by Professors S.A.

Gureyev and G.M. Melkov) as inconsistent withRussia’s national interests.34 The personnel of the Legal Department of the RussianMinistry of Foreign Affairs have made unprecedented efforts to justify B.N.Yelstin’s new choice of Russia’s Arctic position,35 but the criticism of that choicedemonstrably looks more compelling.36It is not recognized in most Anglo-American doctrines that the practice ofthe Arctic states has been and remains the determinant factor in forming the legalregime of the Arctic, including that of the arctic continental shelf; albeit in a ratherperfunctory manner. Thus, one of the first in-depth Western studies of the status ofthe Arctic (published in English in 2001) notes:33Russian Federation Code.

1997. No. 25. Sect. 2939.34Gureev S.A., Bunik I.V. O neobkhodimosti podtverzhdeniya i pravovogo zakrepleniya isklyuchitel’nykh pravRossii v Arktike. Sovet Federatsii FS RF. Morskaya deyatel’nost’ Rossiiskoi Federatsii: sostoyanie i problemyzakonodatel’nogo obespecheniya [On the Need to Affirm and Legally Formalize Russia’s Exclusive Rights in theArctic. Federation Council of the Federal Assembly of the Russian Federation.

Russia’s Maritime Operations:Condition and Issues of Legislative Regulation] / Ed. by V.A. Popov. М. 2005. P. 162-164; Melkov G.M. Kvoprosu o statuse Pechorskogo i Okhotskogo morei [On the Issue of Status of the Pechora and Okhotsk Seas] //MJIL. 2014. No. 4. P. 41 et seq.35Titushkin V.Yu. K voprosu o vneshnikh granitsakh kontinental’nogo shel’fa Rossiiskoi Federatsii v Arktike.Mezhdunarodnoe morskoe pravo. Stat’i pamyati A.L. Kolodkina [On the Outer Limits of the Continental Shelf ofthe Russian Federation in the Arctic.

International Law of the Sea. Articles in Memoriam of A.L. Kolodkin]. М.2013. P. 223 et seq.36Nikolaev A.N., Peshchurov I.S. Pravovye vozmozhnosti predotvrashcheniya poteri Rossiei vysokoshirotnogouchastka arkticheskogo shel’fa [The Legal Opportunities for Preventing Russia’s Loss of High-Latitude ArcticShelf] // Sovremennye proizvoditel’nye sily. Fundamental’nye issledovaniya prostranstvennogo razvitiya [Forces ofProduction Today. Fundamental Studies in Spatial Development]. 2014.

№ 1; Zhudro I.S. Obychno-pravovyenormy kak komponent unikal’nogo istoricheski slozhivshegosya statusa Arktiki [Customary International Law as aComponent of the Unique Historically Crystallized Status of the Arctic] // Vestnik Severnogo (Arkticheskogo)federal’nogo universiteta. Seriya “Gumanitarnye i sotsial’nye nauki” [Northern (Arctic) Federal University Journal.“Humanities and Social Studies” Series]. 2014.

No. 6; Peshchurov I.S. Rezhim dna Severnogo Ledovitogo okeanasoglasno mezhdunarodnomu obychnomu pravu [Regime of the Arctic Ocean Floor under the CustomaryInternational Law] // MJIL. 2014. No. 3(95) et seq.43“No distinctive law of the sea regime has been developed for the Polaroceans despite their special characteristics. However, this has not prevented theapplication of “general” law of the sea.

In the Arctic, no true regional regime hasbeen developed notwithstanding the common problems confronting Arctic States.Instead, the law of the sea for the Polar north has been applied through nationalapproaches. That is, the government of each Arctic State considers, adopts andimplements through its own national legislative means those legal rules and normsthat it feels best serve its national interests within the context of its own Polar seas.Thus, as concepts and principles of ocean law emerged and evolved throughout the20th century, they were adopted and applied by each Arctic State, in its own way,to its own northern waters.”37Recognition of this regional and national legislative component of thecontemporary status of the Arctic remains a rarity in the Anglo-Americaninternational law doctrines. But even they do agree implicitly that in the conditionsof the Arctic all global mechanisms created by the 1982 UNCLOS “fail”.

This isdue not only to the immense differences of the ice-bound regions of the North fromthe warm waters of the Indian Ocean, but also because one of the five Arctic states(the U.S.) is not a party to the 1982 UNCLOS and, therefore, is free from theobligation to delimit its Arctic shelf or to pay for exploiting its natural resourcesbeyond 200 nm as required by Art. 82. Therefore, if one Arctic coastal state (theU.S.) does not intend to comply with such conventional restrictions, while theothers (Russia, Norway, Denmark, Canada) must, that discrepancy in the legalstatus already carries a degree of inequality from the perspective of the investmentenvironment, and companies’ planning business projects relating to the Arcticshelf.